The URL can be used to link to this page

Home My WebLink About18-52 Modifying and reconfirming resolution for Tower at Washington (Apartments) Tn��'�a Filed ire �l��l�'� Office �a !, 9 — - U !' Ad I p S P 0 5 2018 9t K 865�.� KAREENIAH FOWLER SwtTY CLEi�l�ti�®iJTFI BE��,I� CITY Off' SOUTHBENI COMMUNITY INVESTMENT JAMES MUELLER, EXECUTIVE DIRECTOR September 5,2018 Council Member Gavin.Ferlic, Chairperson Community Investment Committee South Bend Common Council 4th Floor, County City Building I South Bend„IN 46601 RE: Real Property Tax Abatement Extensions for: Historic JMS Building LLC,JSK Development Inc.,RDistrict One LLC,Imagineering Enterprises Inc.,Tower at Washington Square LLC. r' Dear Council Member Ferlic: r As part of our annual review process, we have found the need for several extensions to the designation period for previously approved tax abatements. These extensions would not alter the i length of the abatement itself, however. It has been a general practice, when granting a tax abatement, to allow a two-year designation period for the project to get underway, be completed, } and receive its higher reassessed value. The clock on the designation period starts when the f abatement is granted by Council. Sometimes a project takes a bit longer to get underway and/or be completed, and sometimes the Assessor's office does not issue the reassessed value (and accompanying Form 11)within the two-year timeframe. For these situations(detailed below) the petitioners are asking Council to grant extensions of the designation period on the following tax abatements. Attached please find proposed forms of resolutions modifying and reconfirming the adoptions of declaratory resolutions for Historic JMS Building LLC,-JSK Development Inc.,RDistrict One LLC, Imagineering Enterprises Inc., Tower at Washington Square LLC which combined were granted a total of eleven real property tax abatements. DANIELJ.BUGKENIsmm ALKEYNAALDRIDGE PAMELA MEYER Thor CORGORAN BUSINESS DEVELOPMENT ENGAGEMENT&ECONOMIC EMPOWERbf1VT NEIGHBORHOOD DEVELOn'sw PLANrmo&Co?,snN TY REsoURGEs EXCELLENCE I ACCOUNTABILITY I INNOVATION I INCLUSION I EMPOWERMENT 1400S County-City Building 1227 W.Jefferson Blvd.I South Bend,Indiana 466011 p 574.235.93711 www.southbendin.gov CITYOFSOUTHBEND I COMMUNITY INVESTMENT These modifications are related to extending a designation period from the date of adoption of the original Declaratory resolutions. Some of above mentioned companies received a form 11 from the St. Joseph County Assessor Office in July 2018.Those companies filed appropriate forms with the St. Joseph County Auditor Office in a timely manner, but the designation period already expired. Other companies have completed their projects but never received a form 11 with a full assessment values and as a result have not submitted required.forms to the St. Joseph County Auditor Office. Finally, two companies requested a designation period extension due to complexity of their projects that caused unanticipated delays. Historic JMS Building: The project was completed in March 2017. The company has invested$8.4 million and created 3 new-jobs. The JMS building now houses Centier Bank and apartments contributing to the density and vitality of downtown South Bend. The company received a form I l from the St. Joseph j County Assessor Office in July 2018 and.filed appropriate forms to the St.Joseph County Auditor r i Office. The designation period expired on June 22,2017. 1 JSK Development eland Hospitality/Holiday Inn Express): The project was completed in April 2018. The company has invested $6.5 million and created 17 new jobs. The Holiday Inn opened in May and is part of a revitalization of the South Side at Michigan and the Bypass. The company has never received a form I 1 from the St.Joseph County Assessor Office. The designation period expired on July 13,2017. I s JSK Development(S outhhold/Courtyard Marriott Downtown): The project was completed in April 2018. The company has invested $11 million and created 38 new jobs. The Marriott has truly enhanced our downtown streetscape and makes the Century t Center a more viable option to bring in citywide tourism and revenues from small conferences and shows. The company has never received a form 11 from the St. Joseph County Assessor Office. The designation period expired on May 26,2018. JSK Development(Southhold/Hall of Fame): The future use of the former College Football Hall of Fame Building was directly tied to the construction and subsequent opening of the Courtyard Marriott Downtown Hotel. While those plans did not come to fruition,JSK maintained their commitment to purchase the vacant property. The hotel project was completed in April 2018 and JSK is requesting a designation period extension on the vacant hall of fame building. The designation period expired on May 26,2018. RDistrict One(Studebaker Building 84): The project was completed in May 2018.The company has invested$18.4 million and created 19 new j obs and retained 5 jobs.The company has nbt received a form 11 for a full assessment of the property from the St.Joseph County Assessor Office.The designation period expired on December 17,2017. 4 i Page 2 z s CITY OF SOUTH BEND I COMMUNITY INVESTMENT Ima ing_eering Entezprises: The company was granted personal and real property tax abatements and proactively requested a designation period extension due to a significant increase in its strategic investments. The designation period will expire on September 26,2018. Tower at Washington(Hotel and Parking_Garage): Two projects were completed in September 2017. The company has invested $38.5 million and created 45 new j obs. The company received a form 11 from the St. Joseph County Assessor Office in July 2018 but is still waiting for a frill assessment of these properties. The designation period will expire on September 29,2018. Tower at Washiniton(Retail and Apartments): Two projects have,not been completed yet due to the size and nature of the project. The company is investing $15 million into the ongoing project. The company requested an extension of the designation period for these project elements.The designation period will expire on September 29, 2018 for the Retail elements and on October 26, 2018 for the Apartments. The Department of Community Investment supports these requests for extension of the designation period. These companies have met or exceeded their other abatement milestones and commitments, generating visible growth and community impact. Should you or any of the other Council members have any questions concerning the report,or need additional information,please feel free to call me at 235-5823. Since 1 , I ( Daniel J. uckenmeyer j Director of Business Development i C i f , I E E Page 13 i f C O M P A N Y BRADLEY August 2,2018 112 W.Jefferson Blvd„Suite 300 I South Bend,IN 46601 1574,237.6000 Daniel Buckenmeyer Director of Economic Resources and Business Development Department of Community Investment City of South Bend 227 W.Jefferson Blvd.,Suite 1400S South Bend,IN 46601 Re: Tower at Washington Square Resolution Number 4501-15/4536-16 HOTEL:4502-15 PARKING GARAGE;4503-15 RETAIL; 4506-15 APARTMENTS i Dear Mr. Buckenmeyer, We are writing to ask for your support and favorable recommendation to extend the 3-year expiration of the Declaratory Resolutions 4501-15/4536-16;4502-15;4503-15 and 4506-15 for the Tower at Washington Square from October 20,2018 to October 20h,2020. We are requesting an extension on Resolution 4503-15 and 4506-15 due to the size and-nature of the project taking longer than anticipated. The Hotel(Resolution 4501-15/4536-16)and Parking Garage(Resolution 4502-15)sections of the project are complete and opened on September 27,2017. Notice of Assessments were sent on July 17th, 2018 for all parcels,However,they are not fully re-assessed yet which is the reason for the extension request for these 2 Resolutions. i All CF-1's have been filed in a timely manner since the inception of the Declaratory Resolution, l s 38.5MM with another 15MM to finish the Apartments and the The actual private investment so far i $ $ p l Retail space. There have been 45 of 62 jobs created so far. Thank you in advance for your support in this matter. i Should you need additional information,please contact me at(574)968-9266. Filed in Clerk's Office Sincerely, FEP051-ola KAREEMAHi I=b�v�lq J .lie Ruiz CITY CLERK,SOUTH BEND IN Certified Tax Representative for The Tower at Washington Square,LLC. l ( 1 ff 1 I 1 s F BILL NO. 18-52 Filed in Clerk's Office RESOLUTION NO. SEP 0 5 2018 ER A RESOLUTION MODIFYING AND RECONFIRMING T 7W0P-ffW" Env® �t� DECLARATORY RESOLUTION NO. 4506-15 DESIGNATING CERTA��--- AREAS WITHIN THE CITY OF SOUTH BEND, INDIANA, COMMONLY KNOWN AS 211 West Washington Street AN ECONOMIC REVITALIZATION AREA FOR PURPOSES OF A (10) TEN YEAR REAL PROPERTY TAX ABATEMENT FOR APARTMENTS LOCATED AT THE TOWER AT WASHINGTON SQUARE LLC WHEREAS, the Common Council of the City of South Bend has adopted declaratory resolutions designating certain areas within the City as Economic Revitalization Areas for the purpose of tax abatement consideration; and WHEREAS, Declaratory Resolution No. 4506-15 designated the area located at 211 West Washington Street, South Bend, IN 46601 and which is more particularly described as follows: LOTS 239 &240 & VAC ALLEY W&ADJ OP and which currently designated as an Economic Revitalization Area; and WHEREAS, upon proper notice, a public hearing was held, after which the Common Council issued Confirming Resolution No. 4539-16, confirming the adoption of Declaratory Resolution No. 4506-15 on March 15, 2016; and WHEREAS, the Petitioner was granted a three-year designation period in Confirming Resolution No. 4539-16, which expired on October 27, 2018; however, the project has not been completed yet; and WHEREAS, the Petitioner has requested additional two years to extend the designation period. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of South Bend, Indiana, as follows: SECTION I. The Common Council hereby determines and finds that the extension of the designation is appropriate and meets the requirements of Indiana Code § 6-1.1-12.1 et seq. SECTION II. The Common Council hereby reconfirms Declaratory Resolution No. 4506-15 and Confirming Resolution No. 4539-16 designating the area described herein as an Economic Revitalization Area for the purpose of a real property tax abatement. Such designation is limited to five (5) calendar years from the date of adoption of Declaratory Resolution No. 4506-15 by the Common Council. SECTION III. The Common Council hereby determines that the property owner is qualified for and is granted property tax deduction for a period of ten (10) years as shown below and further determines that the petition, the Statement of Benefits and the Memorandum of Agreement between the Petitioner and the City of South Bend comply with Chapter 2, Article 6, of the Municipal Code of the City of South Bend and Indiana Code 6-1.1-12 et seq. Year 1 — 100% Year 2— 100% Year 3 —90% Year 4—85% Years -85% Year 6-85% Year?-85% Year 8—60% Year 9—60% Year 10—60% SECTION IV. This Resolution shall be in full force and effect from and after its adoption by the Common Council and approval by the Mayor. Tim Scott, Council President South Bend Common Council 2 RESOLUTION No. 4539-16 Passed by the Common Council of the City of South Bend, Indiana March 14, 20 16 Attest: City Clerk Attest, President of Common Council Presented by me to the Mayor of the City of South Bend, Indiana . March 15, 20 16 City Clerk Approved and signed by me — 20�.� . RESOLUTION NO. 453]-l(P A RESOLUTION MODIFYING AND CONFIRMING THE ADOPTION OF A DECLARATORY RESOLUTION DESIGNATING CERTAIN AREAS WITHIN THE CITY OF SOUTH BEND, INDIANA, COMMONLY KNOWN AS: 211 West Washington Street AS AN ECONOMIC REVITALIZATION AREA FOR PURPOSES OF A TEN (10) YEAR REAL PROPERTY TAX ABATEMENT FOR: APARTMENTS LOCATED AT THE TOWER AT WASHINGTON SQUARE LLC WHEREAS,the Common Council of the City of South Bend,Indiana,adopted Declaratory Resolution No. 4506-15 (the "Declaratory Resolution") designating certain areas within the City as Economic Revitalization Areas for the purpose of tax abatement consideration; and which was adopted by the Council on October 27, 2015 and approved by the Mayor that same date. WHEREAS, the Declaratory Resolution designated a portion of the property commonly known as 211 West Washington Street, South Bend, Indiana, and which is more particularly described as follows: Lots 239 & 240 & Vac Alley W &Adj OP and which is to be rehabilitated for use as apartments as an Economic Revitalization Area; and WHEREAS, said property has been subdivided into four (4) separate tax parcels and the legal description and Key Number for the parcel relating to the apartments is as follows: That part of the Northwest Quarter of Section 12, Township 37 North, Range 2 East, Portage Township, City of South Bend, St.Joseph County, Indiana which is described as: Apartment Unit (R-1) as shown on the "Declaration of Horizontal Property Ownership, Washington Square Condominium Horizontal Property Regime"as recorded by Document No. 1605719 on March 10, 2016 and those certain floor plans for the building recorded on the date of record of declaration as Document No. 1605718 in the records of the St. Joseph County, Indiana recorder's office. US.105007109.01 Subject to all legal easements, exhibits and restrictions of record for said Washington Square Condominium Horizontal Property Regime.. Key Number 18-1008-032103 (said parcel being referred to hereinafter as the "Property"); and WHEREAS, notice of the adoption of a Declaratory Resolution and the public hearing before the Council has been published pursuant to Indiana Code 6-1.1-12.1-2.5; and WHEREAS, a copy of the notice of adoption of a Declaratory Resolution and a statement containing substantially the same information as a statement of benefits filed with the Council has been filed with each taxing unit that has authority to levy property taxes in the geographic area pursuant to Indiana Code 6-1.1-12.1-2.5; and WHEREAS, the Council held a public hearing on March 14, 2016 for the purposes of hearing all remonstrances and objections from interested persons; and WHEREAS, the Council determined that the qualifications for an economic revitalization area have been met. NOW, THEREFORE, BE IT RESOLVED by the Common Council of the City of South Bend, Indiana, as follows: SECTION 1. The Common Council hereby modifies and confirms its Declaratory Resolution to designate the Property as an Economic Revitalization Area for the purposes of tax abatement. Such designation is for real property tax abatement only and is limited to three (3) calendar years from the date of adoption of the Declaratory Resolution by the Common Council rather than the two (2) calendar year designation due to the size, scope and complexity of the rehabilitation of the property. SECTION II. The Common Council hereby determines that the property owner is qualified for and is granted real property tax deduction for up to a period of ten(10)years as provided in the alternate abatement scheduled below pursuant to Indiana Code 6-1.1-12.1-17 and further determines that the petition, the Memorandum of Agreement between the Petitioner and the City of South Bend, and the Statement of Benefits comply with Chapter 2, Article 6, of the Municipal Code of the City of South Bend and Indiana Code 6-1.1-12 et s. - 2 - us.105007109.01 Real Property Year Abatement 1 100% 2 100% 3 90% 4 85% 5 85% 6 85% 7 85% 8 60% 9 60% 10 60% SECTION 111. This Resolution shall be in full force and effect from and after its adoption by the Common Council and approved by the Mayor. Member of the Common Council Filed in Clerk's Office NOT AMO MAR 14 2016 ADC�pMoo", 3I�1� I l KAREEMAH FOWLER CITY CLERK,SOUTH BEND,I!jj US.105007109.01 N�r� 227 W.JEFFERSON BOULEVARD k; ti� / `r PHONE:574/235-9371 SUITE 1400 S. , FAx:574/235-9021 SouTH BEND,IN 46601-1830 CITY OF SOUTH BEND PETE BUTTIGIEG,MAYOR COMMUNITY INVESTMENT SCOTT FORD,EXECUTIVE DIRECTOR March 9, 2016 Council Member Gavin Ferlic,Chairperson Community investment Committee South Bend Common Council 4th Floor, County City Building South Bend, IN 46601 RE: Tax Abatement Petitions for: The Tower at Washington Square, LLC Dear Council Member Ferlic: "The provided information in this cover letter and accompanying documentation are from the original packet provided to Council and is being included to Council for informational purposes due to the time delay in bringing back the Confirming Resolutions before Council for approval. Please find the attached information pertaining to the vacant building and real property tax abatement petitions for The Tower at Washington Square,LLC. ➢ Department of Community Investment's summary report ➢ Copy of the petitions ➢ Statement of Benefits forms ➢ Supporting information. The report contains the Department's findings relative to the above petitions. As detailed in the accompanying Tax Abatement Report the petitioner is requesting exceptions to the local ordinance as allowed by State law. A representative from The Tower at Washington Square,LLC will be available to meet with the Committee on Monday, March 14, 2016. Should you or any of the other Council members have any questions concerning the report, or need additional information,please feel free to call me at 235-5823. Sincerely, Filed in Clerk's Office Aaron Kobb PEAR 0 9 Director Economic Resources Z0�6 KAREEMAH FOWLER CITY CLERK,SOUTH REND,IN PLANNING NEIGHBORHOOD ENGAGEMENT BUSINESS DEVELOPMENT ECONOMIC RESOURCES PAMELA C.MEYER BRUN PAWLOWSKI AARON KOBE STATEMENT OF BENEFITS 20 PAY 20_ REAL ESTATE IMPROVEMEP)T3 - 9tsu Fate 51797(R412.13) FORM 89-1 1 Real Property Prescribed by Ute Deparlmonl or Local GovenniTtenl Fkwlice --- PRIVACY NOTICE This stelemartt Is lb&0 g cotnpd®tad For meal pro"rty viat gtwjMw lA-KW ft robe lw Indfmta Code(check one box): The coot and any apedtb eedivedunl's ❑ Redevelopment or rehobftUm of real estate knprovan ants(IC 6.1.1.12.1-4) busty e o the Qk k s pub hac ere balance or the fdirq is public nerord ❑ ReaWelll e#y distressed am(1C&1.1-12.1-0.1) oar IC 61.1.72.1-5 Ile)"td). INSTRUCThm 1. This d& mart mndt be aubnafted to Me body dast ry the Eooaw*Revft&atbn Area Prior to the Public hearing Nth.deslpnennc body Mgtrdes tnforrrtatlon from the applicant in making its decision about whether to dad VW#an Econotnb 8Wn Area. OthOnvilsa,Ihls statement must be submitted to the destgneftng body BEFORE the redevelopment or rahablRfallon ofreal property for ivhkh the person W&fies to claim a deduction. TP q*cts`planned orcommnMd to arterJdy i,1887 and areas designated after July 1,1987,require o STATEMENT OF BENEFITS, (11364.1-121) 2 App rovef of the deskmfh q body(CV Co WWI.Town BoaA County Council.eta)must be obtalrted prior to lnHralbn of lily Mdevelopment or rehabilltallbo,BEFORE a deduction may be epproved. 3. Tb obtain a dsMUdbn,a Form 31214E must be t)tad*0 the CountyAWilorbefore May 10 in the year In whtdl the addition to assessed valuation is made or net later than thinly(30)day%after the asseismailt nolice is mailed to the pipperily owner Ifft was mailed aftrApfil io. ir(he property owner misses the May 10 deadline in the InNal year of occupatbn,he can apply between March f and May 10 ofa subsequent year. 4, Property owners whose Statement of Senef:U was approved after June 30,1991,must attach a Porn CF-1AReal Property annually to the epplkatfon to show compliance wffh the Statement of Banefits. (IC 6-1.1-12.1-31(b)and IC 6 i.9-12.i•6.3{�7J 5. The Schedules t-stabltsiled underIG 6-t 1.121-4(d)far rehabihleted property Apply to any economic revilaGza(Ion areas designated eAer hnw 30.2000, unlass an aaftmadve dedurtlan Sdwgk*is adlptod by ft dssV*ky body(IC G 1,f-i2.f-1 r7. The schedules effective pdor to July 1.2000,shall corO?ue to apply to economic relrfalkellon areas dDSOMfed Wom July 1,2000. Name d tdgw Memo!one,LLC AdBra eaoflaxpsyer(numberandahsal.d1ysfak"andZiPmda) -- - —~ w5 a.Lataysee Bmisr—d,S.Ah BMA,InA ns 4eee1 Marne o{Ca1lKtpetson ltkephona rximhet E-mea address SMart E Pwanrm (574 ) 387-7M2 �.rn•n Name of A•Igna6ng Lady ResoNlbn n11t11bK Saual Bend Camnan COtsael S` Loolto n or prOpelly - -- County OIGP fmtkg deftiet number 0.15 3.Lehyaea Bwtlsysrd,Smsh Barak I 4=1 SL Jasem COX" Descophei of real Properly lmproYementa,rodevMOPmanl er rehabriftWn(ose AdWenar sheets Irdeeeasary) --- EsameW scan dale(month,days jWd 171ISMI5 Lc&Nunbww ore(1)and Twee f3)a sfamn on use recorded Pbt of RE"SSANCE Let,DR SUBrAVr4GH,ramrdad 1or1n5 toe No.1526199 Fatinared ourtlNdon d+k(mm61 dnt>t� 3IVi-J77 Cuurnl nun4>er �S3':=.d_ NumLwnYhed Salnha 05 1 a 1 a • 1 RFAL ESTATE IMPROVEMENTS COST ASSESSED VALUE Currant values Pius p6(lmated values otpfoilosed pro ac!. - _ 9•s/s/!e, ZSa Lees Values of art)progedy being rep)atxd ___ so Net esill-vated values on CompfeUon of ect 70,:7Z Eatimaled sold waste convened(po(47da9 WA Esllmated ttazardam waste converted(pounds) WA Paler betr_fAs rh a pretecl vAl mvA In Ow redevstopmeni sib tahs WU1;on of Studehakat Buidinps 112 ant 113 atsd pro�hfs use"phase d dMapn�1 rn M Iomrr Saulssasar Asa't1f family(ivy Tolrer) sic.TNf prated vNl prayslO the RQtLr•d f•aufty,#draatruc4rre and k4Eat parhlag b rstltfaz•asese Asa t ffl,%,n card mmm ee N rwtnzason or tie canons.The dla Is s taewnaM!sea w id r has been mosw rdn.e4W and caber of-seed and'or Vacant trace SludebekMa dvsrse 52 ye.ta ago. TAXPAYER CERTIFICATION 1 hereby certify that the rspreaentatlons in this statement are h le. /1-� ---- 71/a - - ❑e la IIQ7ed(mor+fn,rise r+r)�—- Page 1*r2 r We find that the applicant meets the general standards in the resolution adopted or to be adopted by this body. Said resolution,passed or to be passed under 1C 6-1.1-12.1,provides for the following limitations: A. The designated Area ha been li ited to a period of time not to exceed_calendar years'(see below). The dale this designation expires is I,� —,i - L&7 B. The type of deduction that is allowed in the designated area is limited to: 1.Redevelopment or rehabilitation of real estate Improvements Wyes ❑No 2.Residentially distressed areas 19 Yes ®No C. The amount of the deduction applicable is limited to$ D. Other limitations or conditions(specify) E. The deduction is allowed for!IoD years*(see below), KYes F. Did the designating body adopt an alternative deduction schedule per IC 6-1.1-12.1-17? ❑No If yes,attach a copy of the alternative deduction schedule to this form. We have also reviewed the information contained in the statement of benefits and find that the estimates and expectations are reasonable and have determined that the totality of benefits is sufficient to Justify the deduction described above. Approved( "gna e d tills ofaulhodzed member r of designating body) Telephone number Date signed(month.day,year) Attesled by(signature and title of allester) Designated body V 121)--- � If the d ignating body limits the time period during which an area is an economic revitalization area,it does not limit the length of time a taxpayer is entitled to receive a deduction to a number of years designated under IC 6-1.1-12.14. A. For residentially distressed areas,the deduction period may not exceed five(5)years. B. For redevelopment and rehabilitation or real estate improvements: 1. if the Economic Revitalization Area was designated prior to July 1,2000,the deduction period Is limited to three(3),six(6),or ten(10)years. 2. if the Economic Revitalization Area was designated after June 30,2000,and is not in a residentially distressed area,the deduction period may not exceed ten(10)years. Off Filedv,M a i Page 2 of 2 NEW,IN MEMORANDUM OF AGREEMENT This Memorandum of Agreement (the "Agreement") dated as of the 3rd day of March, 2016, serves as confirmation of a commitment by The Tower at Washington Square, LLC (the "Applicant"), pending a March 14, 2016 public hearing, to comply with the project description, job creation and retention (and associated wage rates and salaries) figures contained in its petition, Statement of Benefits, and attachments and this Agreement(the "Commitments"). 1. Commitments of City and Applicant. Subject to the adoption of a Declaratory Resolution and a Confirmatory Resolution by the South Bend Common Council (the "SBCC"), the City of South Bend, Indiana (the "City") commits to providing a (10) ten-year vacant building real property tax abatement for the Applicant, based on the Applicant's commitment set forth in Commitments regarding the renovation of a building located on property identified as 211 West Washington St., South Bend, Indiana 46601 approved as part of the Commitments. The Applicant commits to a capital expenditure (from all sources of funds) of$12,597,000 in building improvements towards the apartment space as part of a large scale redevelopment project to an existing building commonly known as the former Chase Tower. This portion of the overall project will create (6) six jobs over the life of the abatement, representing an annual payroll of$200,179. 2. Potential Impact of State of Indiana Circuit Breaker Law: The parties-note that the calculations regarding the affect of the tax abatement in question are based on the State of Indiana's tax rates currently in effect at the time of entering into this Memorandum of Agreement. The complete impact of the State of Indiana's Circuit Breaker law on the City's property tax revenues is unknown at this time. To assure that the City receives the projected amount of property tax revenues, which amount was calculated at the time of granting the tax abatement for the Applicant, the parties to this Memorandum of Agreement agree to adjust the length of the abatement and/or the percentage of deduction if the tax revenues due under the Circuit Breaker Law are less than what was initially projected and represented to the Common Council, as evidenced by the supporting documentation submitted by Applicant to the Council with the Applicant's tax abatement petition. However, in no case will the adjustments cause the property taxes to be paid to exceed the tax payments as initially projected and represented to the Common Council by the aforementioned supporting documentation. 3. Applicant's Compliance with City and State Laws. During the term of the abatement, the Applicant shall comply with Chapter 2, Article 6 of the South Bend Municipal Code entitled "Tax Abatement Procedures" and all governing provisions of the Indiana Code. During the term of this abatement, the City may annually request information from the Applicant concerning the nature of the Project, the approved capital expenditure of the Project, the number of full-time permanent positions newly created by the Project, and the average wage rates and salaries (excluding benefits & overtime) associated with the positions, and the Applicant shall provide the City with adequate written evidence thereof within 15 days of such request (the "Annual Survey"). The City shall utilize this information and the information required to be filed by the Applicant in the CF-1 Compliance with the Statement of Benefits form to verify that the Applicant has complied with the commitments contained in the Commitments at all times after the date of this Agreement and during the duration of the abatement. The Applicant further agrees to provide the City with such additional information requested by the City related to the information provided in the Annual Survey and the CF-1 form within a reasonable time following any such additional request. 4. Substantial Compliance and Rights of Termination. The City, by and through the SBCC, reserves the right to terminate the Economic Revitalization Area designation and associated property tax abatement deductions if it determines that the Applicant has not made reasonable efforts to substantially comply with all the Commitments, and the Applicant's failure to substantially comply with the Commitments was not due to factors beyond its reasonable control. As used in this Agreement, "substantial compliance" shall mean the Applicant's compliance with the following: (a) Twelve Million Five Hundred Ninety-Seven Thousand Dollars ($12,597,000) for building improvements, and (b) this portion of the overall project will create 6 jobs over the life of the abatement with an annual payroll totaling Two Hundred Thousand One Hundred Seventy-nine Dollars ($200,179). 5. Factors Beyond Control. As used in this Agreement, factors beyond the control of the Applicant shall only include factors not reasonably foreseeable at the time of designation application and submission of Statement of Benefits which are not caused by any act or omission of the Applicant and which materially and adversely affect the ability of the Applicant to substantially comply with this Agreement. t 6. Repayment of Tax Abatement Savings. If at any time during the term of this Agreement the Applicant shall: (i) be delinquent or in default with respect to any tax payment in St. Joseph County, Indiana; or (ii) cease operations at the facility for which the tax abatement was granted; or (iii) announce the cessation of operations at such facility, then the City may immediately terminate the Economic Revitalization Area designation and associated tax abatement deductions, and upon such termination, require Applicant to repay all of the tax abatement savings received through the date of such termination. 7. Notice/Hearing of Termination. In the event that the City determines that the Economic Revitalization Area designation and associated tax abatement deductions should be terminated or that all or a portion of the tax abatement savings should be repaid, it will give the Applicant notice of such determination, including a written statement calculating the amount due from the Applicant, and will provide the Applicant with an opportunity to meet with the City's designated representatives to show cause why the abatement should not be terminated and/or the tax savings repaid. Such notice shall state the names of the person with whom the Applicant may meet. The Applicant shall have thirty days from the date of receipt of such notice to arrange such meeting and to provide its evidence concerning why the abatement termination and/or tax savings repayment should not occur. If, after giving such notice and receiving such evidence, if any, the City determines that the abatement termination and/or the tax repayment action is proper, the Applicant shall be provided with written notice and a hearing before the SBCC before any final action shall be taken terminating the abatement and/or requiring repayment of tax benefits. The Applicant shall be entitled to appeal SBCC's determination to a St. Joseph County Superior or Circuit Court. 8. Repayment. In the event the City requires repayment of the tax abatement savings as provided hereunder, it shall provide Applicant with a written statement calculating the amount due (the "Statement") as calculated in accordance with the South Bend Municipal Code Section 2-84-14(h) and as permitted by Indiana law, and Applicant shall make such repayment to the City within 90 days of the date of the Statement. If the Applicant does not make timely repayment, the City shall be entitled to all reasonable costs and attorneys' fees incurred in the enforcement and collection of the tax abatement savings required to be repaid hereunder. 9. Modification/Entire Agreement. This Agreement and the schedules attached hereto contain the entire understanding between the City and the Applicant with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and understandings, inducements, and conditions, expressed or implied, oral or written, except as herein contained. This Agreement may not be modified or amended other than by an agreement in writing signed by the City and the Applicant. The Applicant understands that any and all filings required to be made or actions required to be taken to initiate or maintain the abatement are solely the responsibility of the Applicant. 10. Waivers. Neither the failure nor any delay on the part of the City to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege with respect to any occurrence or be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver. 11. Governing Laws of Indiana. This Agreement and all questions relating to its validity, interpretation, performance, and enforcement shall be governed by the laws and decisions of the courts of the State of Indiana. 12. Applicant's Consent to Jurisdiction. The Applicant hereby irrevocably consents to the jurisdiction of the Courts of the State of Indiana and of the St. Joseph County Circuit or Superior Court in connection with any action or proceeding arising out of or relating to this Agreement or any documents or instrument delivered with respect to any of the obligations hereunder, and any action related to this Agreement shall be brought in such County and in such Court. 13. Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been received when delivered by hand or by facsimile (with confirmation by registered or certified mail) or on the third business day following the mailing, by registered or certified mail, postage prepaid, return receipt requested,thereof, addressed as set forth below: . y If to Applicant: The Tower at Washington Square, LLC 5-4447 1h Avenue, 3`d Floor Long Island City,NY 11101 Attn: Liberty Angeliades If to the City: City of South Bend, Indiana 227 West Jefferson Blvd. Suite 1400S South Bend, Indiana 46601 Attn: Aaron Kobb, Department of Community Investment 14. Assigmnent and Transfer Prohibited. This Agreement shall be binding upon and inure to the benefit of the City and the Applicant and their successors and assigns, except that no party may assign or transfer its rights or obligations under this Agreement without the prior written consent of the other party hereto, in which consent shall not be unreasonably withheld. 15. Valid and Binding Agreement. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original as against any party whose signature appears thereon, and all of which shall together constitute one and the same instrument. By executing this Agreement, each person so executing affirms that he has been duly authorized to execute this Agreement on behalf of such party and that this Agreement constitutes a valid and binding obligation of the party. 16. Severability. The provisions of this Agreement and of each section or other subdivision herein are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part unless this Agreement is rendered totally unenforceable thereby. 17. No Personal Liability. No official, director, officer, employee or agent of the City shall be charged personally by the Applicant, its employees or agents with any liabilities or expenses of defense or be held personally liable to the Applicant under any term or provision of this Agreement or because of the execution by such party of this Agreement or because of any default by such party hereunder. [Remainder of page intentionally blank.] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. "Applicant" `City" The Tower at Washington Square, LLC City of auth-Bend;Indiana Liberty An des, Mar&ger Tim Scott President, South Bend Common Council pproved,as to Legal Adequacy and Form y; his_/y'�4 day of /�7wc�i, 2SL1�3'ao�6 Gavin Ferlic Chairperson, Community Investment Committee Kathleen Cekanski-Farrand / Counsel, South Bend Common Council By; Aaron Kobb Department of Community Investment Counsel for Applicant By: Pete B Mayor (Signature page to the MOA—Apartments)